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Two transgender rights cases will be heard by full U.S. appeals court

The cases, out of North Carolina and West Virginia, involve health insurance coverage for treatment commonly sought by transgender people.
An LGBTQ pride mural in downtown Raleigh
An LGBTQ pride mural in downtown Raleigh, N.C., just a few blocks away from the Legislative Building, on Nov. 16.Hannah Schoenbaum / AP file
/ Source: Reuters

The 4th U.S. Circuit Court of Appeals on Wednesday said it would convene as a full court to consider a pair of transgender rights cases from West Virginia and North Carolina.

The appeals court’s orders come after two panels of judges had heard arguments in the cases but before either had issued rulings.

Such a proceeding is rare, and it is more typical for a court to convene as a full bench after a three-judge panel issues a written decision. The court acted on its own initiative to grant “en banc” review in the two cases, argued previously in January and in March.

The 4th Circuit did not give a reason for its orders, but Lambda Legal Defense & Education Fund senior attorney Tara Borelli, who argued in both of the disputes, said in a statement that “having both cases reviewed by the full court will allow for consistency across the issues in both appeals.”

Other lawyers in the two cases did not immediately respond to similar requests for comment.

The Richmond-based appeals court said it will take up whether North Carolina’s state health insurance plan can bar coverage for treatments commonly sought by transgender people, including gender reassignment surgery and hormone therapy. The appeals court said it also would hear a similar case from West Virginia involving the state’s Medicaid program.

North Carolina and West Virginia are among a group of at least 15 states where employee health plans do not include coverage for gender transition-related procedures.

Borelli said the U.S. district courts in the two cases found that the exclusions were discriminatory.

The appeals court’s 14 active judges, who generally make up the en banc court, are split evenly between judges appointed during Democrat and Republican administrations.

But the 4th Circuit is considered a Democrat-appointed majority court, since Chief Circuit Judge Roger Gregory was first named to the court by then-President Bill Clinton and confirmed under former President George W. Bush.

En banc arguments in the federal appeals court generally are not common. The 4th Circuit heard two cases as a full court last year and six in 2021.

No argument dates were set in Wednesday’s orders in the two cases.

The cases are Fain v. Crouch and Kadel v. Folwell, 4th U.S. Circuit Court of Appeals, Nos. 22-1927 and 22-1721.